B-19298, NOVEMBER 4, 1941, 21 COMP. GEN. 411

B-19298, NOVEMBER 4, 1941, 21 COMP. GEN. 411

PRIVATE PROPERTY - DAMAGES CAUSED BY NEGLIGENCE OF GOVERNMENT EMPLOYEES CLAIMS SETTLEMENT JURISDICTION THE AUTHORITY IN SECTION 20 OF THE 1942 EMERGENCY RELIEF APPROPRIATION ACT FOR THE COMMISSIONER OF WORK PROJECTS TO SETTLE, AND PAY FROM THE APPROPRIATION, ANY CLAIM NOT IN EXCESS OF $500 ON ACCOUNT OF DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF W.P.A. EMPLOYEES WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, RELATES EXCLUSIVELY TO TORT CLAIMS AND AFFORDS NO BASIS FOR THE COMMISSIONER TO SETTLE CLAIMS FOR DAMAGES RESULTING FROM THE NEGLIGENCE OF EMPLOYEES IN THOSE CASES, SUCH AS DAMAGE TO RENTED EQUIPMENT, IN WHICH THE CLAIMANTS OTHERWISE HAVE A LEGAL REMEDY AGAINST THE GOVERNMENT.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, NOVEMBER 4, 1941:

THERE HAS BEEN CONSIDERED A LETTER OF OCTOBER 9, 1941, FROM YOUR GENERAL COUNSEL, AS FOLLOWS:

IN THE ABSENCE OF MR. CARMODY THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 25, 1941 (B-19298), IN REPLY TO HIS COMMUNICATION OF JULY 28, 1941, CONCERNING THE QUESTION WHETHER THE WORK PROJECTS ADMINISTRATION COULD CONSIDER, UNDER SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942 (55 STAT. 396), CLAIMS FOR DAMAGE TO PROPERTY UNDER RENTAL TO THE ADMINISTRATION, THE WRITTEN PRESENTATION OF WHICH CLAIMS WAS MADE WITHIN THE PRESCRIBED STATUTORY PERIOD, NOT TO THE WORK PROJECTS ADMINISTRATION, BUT TO THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT, THE AGENCY REQUIRED, UNDER EXECUTIVE ORDER NO. 7034, DATED MAY 6, 1935, TO PROVIDE FOR THE PROCUREMENT OF ALL MATERIALS, ETC., FOR THE WORK PROJECTS ADMINISTRATION.

IT IS NOTED THAT YOU ARE OF THE OPINION THAT "IF THE CLAIMS WERE PRESENTED IN WRITING WITHIN THE TIME REQUIRED BY LAW THE FACT THAT THEY WERE FILED WITH THE PROCUREMENT DIVISION RATHER THAN WITH THE WORK PROJECTS ADMINISTRATION WOULD NOT PRECLUDE THEIR CONSIDERATION, ETC., UNDER THE LAW, SUPRA, BY THE COMMISSIONER OF WORK PROJECTS, AND THEIR PAYMENT FROM FUNDS APPROPRIATED FOR THE WORK PROJECTS ADMINISTRATION, PROVIDED, OF COURSE, THEY ARE CLAIMS OTHERWISE PROPERLY FOR CONSIDERATION UNDER SAID LAW.' YOU ARE OF THE FURTHER OPINION, HOWEVER, THAT SUCH CLAIMS ARE NOT OTHERWISE PROPERLY FOR CONSIDERATION UNDER SAID LAW. THE CONCLUSION IS REACHED THAT "WHERE THE LEASED PROPERTY, AT THE TIME IT IS DAMAGED OR LOST, IS IN THE CUSTODY OF THE GOVERNMENT UNDER A RENTAL CONTRACT, IT MUST BE ASSUMED THAT THE AMOUNTS PAYABLE BY THE GOVERNMENT FOR SUCH USE, INCLUDING ANY DAMAGES FOR WHICH THE GOVERNMENT MAY BE LIABLE, ARE FOR DETERMINATION UNDER AND IN ACCORDANCE WITH THE TERMS OF THE RENTAL CONTRACT AND THAT THERE IS NO AUTHORITY, UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW, TO IMPOSE UPON THE GOVERNMENT ANY LIABILITY ASIDE FROM AND IN ADDITION TO SUCH AS MAY BE IMPOSED UNDER THE PROVISIONS OF THE CONTRACT.'

THE FIRST INTERPRETATION TO WHICH THE DECISION IS SUSCEPTIBLE IS THAT CLAIMS FOR DAMAGE TO RENTED PROPERTY OR EQUIPMENT CANNOT BE CONSIDERED UNDER THE LAWS AUTHORIZING THE CONSIDERATION OF CLAIMS "ON ACCOUNT OF DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY," FOR THE REASON THAT SUCH LAWS "APPARENTLY CONTEMPLATE THAT THE "PRIVATELY OWNED PROPERTY" REFERRED TO THEREIN IS PROPERTY IN THE CONTROL OF THE PRIVATE OWNERS OR THEIR AGENTS AT THE TIME IT WAS DAMAGED OR LOST RATHER THAN PROPERTY LEASED OR HIRED TO THE UNITED STATES AND LOST OR DAMAGED WHILE BEING USED FOR THE PURPOSES CONTEMPLATED BY THE RENTAL CONTRACT.' SUCH AN INTERPRETATION, IN EFFECT, HOLDS THAT WHEN AN INDIVIDUAL RENTS OR LEASES PERSONALLY OWNED PROPERTY TO THE GOVERNMENT, THE PROPERTY CEASES TO BECOME PRIVATELY OWNED, MERELY BECAUSE THE OWNER CONTRACTS AWAY HIS RIGHT OR CONTROL OVER THE EQUIPMENT DURING THE LIFE OF THE CONTRACT. THE TEST APPLIED IN THE DECISION IS CONTROL, NOT OWNERSHIP. CONTROL, HOWEVER, IS ONLY AN INDICIA OF OWNERSHIP. IT IS WELL SETTLED THAT A BAILOR RETAINS THE GENERAL OWNERSHIP OF BAILED PROPERTY EVEN THOUGH HE HAS NO CONTROL OVER IT, THE BAILEE OBTAINING ONLY THE SPECIAL OWNERSHIP NECESSARY TO PROTECT HIS INTEREST (SEE 3 R.C.L. 84 AND CASES CITED THEREIN). THE PARTING WITH POSSESSION DOES NOT DESTROY THE BAILOR'S OWNERSHIP OR TITLE BUT MERELY RESTRICTS HIS COMPLETE DOMINION OVER THE CHATTEL IN ACCORDANCE WITH THE LIMITATIONS SPECIFIED IN THE RENTAL CONTRACT OR BAILMENT. THE GENERAL OWNERSHIP AND LEGAL TITLE STILL REMAIN IN THE BAILOR.

THE PROCUREMENT DIVISION AWARDS CONTRACTS FOR THE RENTAL OF EQUIPMENT WITH OPERATORS, IN WHICH CASES THE GOVERNMENT OBTAINS NO RIGHT OF POSSESSION OR CUSTODY OF THE EQUIPMENT, BUT MERELY A CONTRACTUAL RIGHT TO DIRECT THE TYPE OF WORK TO BE PERFORMED. SUCH RENTED EQUIPMENT WOULD FALL WITHIN THE CATEGORY MENTIONED IN THE DECISION AS "PROPERTY LEASED OR HIRED TO THE UNITED STATES AND LOST OR DAMAGED WHILE BEING USED FOR THE PURPOSES CONTEMPLATED BY THE RENTAL CONTRACT.' HOWEVER, IT IS SUBMITTED, IT COULD NOT BE HELD THAT THE SAME EQUIPMENT WAS NOT "IN THE CONTROL OF THE PRIVATE OWNERS OR THEIR AGENTS AT THE TIME IT WAS DAMAGED OR LOST * * *.' IN SUCH INSTANCES, THE COMMISSIONER OF WORK PROJECTS WOULD BE AT A LOSS TO DETERMINE WHICH OF THE TESTS TO APPLY, IN ORDER TO ASCERTAIN WHETHER A CLAIM FOR DAMAGE TO THE EQUIPMENT COULD BE CONSIDERED.

IT IS SUBMITTED THAT THE DECISION IS CONTRARY, NOT ONLY TO LOGIC, BUT TO PRECEDENT. THE WORDS ,PRIVATELY OWNED PROPERTY" ARE USED IN THE SAME SENSE IN SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942 (55 STAT. 396), AND IN THE ACT OF DECEMBER 28, 1922 (42 STAT. 1066). THIS IS INFERENTIALLY ADMITTED IN THE DECISION. ALSO, IN A DECISION OF NOVEMBER 18, 1939 (B-6466), ADDRESSED TO THE FEDERAL WORKS ADMINISTRATOR, IT WAS SPECIFICALLY STATED, CONCERNING SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 (53 STAT. 927), WHICH CONTAINS A PROVISION IDENTICAL WITH SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942 (55 STAT. 396), THAT "THE PROVISIONS OF THIS SECTION APPEAR TO BE SUBSTANTIALLY THE SAME AS THOSE OF THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, * * *.' IT WOULD THEREFORE SEEM FREE FROM DOUBT THAT ANY DIFFERENCE EXISTED BETWEEN THE STATUTES IN QUESTION, AS FAR AS THE POINTS UNDER DISCUSSION ARE INVOLVED.

ALTHOUGH THE DECISION RECITES THAT SUCH LAWS AS THE ACT OF DECEMBER 28, 1922 (42 STAT. 1066), AND SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942 (55 STAT. 6),"APPARENTLY CONTEMPLATE THAT THE "PRIVATELY OWNED PROPERTY" REFERRED TO THEREIN IS PROPERTY IN THE CONTROL OF THE PRIVATE OWNER OR THEIR AGENTS AT THE TIME IT WAS DAMAGED OR LOST RATHER THAN PROPERTY LEASED OR HIRED TO THE UNITED STATES AND LOST OR DAMAGED WHILE BEING USED FOR THE PURPOSES CONTEMPLATED BY THE RENTAL CONTRACT," THE LEGISLATIVE HISTORY OF THE ACT OF DECEMBER 28, 1922, IS DEVOID OF ANY DISCUSSION OF THE MEANING OF THE WORDS "PRIVATELY OWNED PROPERTY.' AS POINTED OUT BY THE ATTORNEY GENERAL OF THE UNITED STATES IN AN OPINION DATED AUGUST 12, 1936 (38 OP. A.G. 514),"ORDINARILY PRIVATELY OWNED PROPERTY, OR PRIVATE PROPERTY, IS UNDERSTOOD TO EMBRACE PROPERTY OWNED BY INDIVIDUALS OR PRIVATE CORPORATIONS AS DISTINGUISHED FROM PROPERTY OWNED BY GOVERNMENTAL BODIES OR AGENCIES; BUT THIS CONCEPTION OF PRIVATE PROPERTY IS SUBJECT TO QUALIFICATION. IT HAS BEEN HELD, FOR INSTANCE, THAT PROPERTY OWNED BY A STATE MAY BE PRIVATE PROPERTY IN RELATION TO THE FEDERAL GOVERNMENT WITH RESPECT TO THE CLAUSE OF THE FIFTH AMENDMENT PROHIBITING THE TAKING OF PRIVATE PROPERTY WITHOUT JUST COMPENSATION * * * ( ITALICS SUPPLIED.) ( * * ** * * *

"WHILE THE LEGISLATIVE HISTORY OF THE ACT OF DECEMBER 28, 1922, CONTAINS NO DISCUSSION OF THE MEANING OF THE WORDS "PRIVATELY OWNED PROPERTY," THE BROAD PURPOSE OF THE ACT--- TO RELIEVE THE CONGRESS OF THE BURDEN OF PASSING UPON NUMEROUS SMALL MERITORIOUS CLAIMS AGAINST THE GOVERNMENT NOT WITHIN THE JURISDICTION OF THE COURTS--- AS INDICATED BY SUCH HISTORY ( H.R. NO. 342, 67TH CONG., ST SESS.) IS CONSONANT WITH THE VIEW THAT CLAIMS OF MUNICIPALITIES MAY PROPERLY BE CONSIDERED UNDER ITS PROVISIONS.'

THE ONLY REFERENCE CITED IN SUPPORT OF THE DECISION ON THE POINT IN QUESTION IS 14 COMP. GEN. 139. IT WAS THERE HELD THAT "THERE IS NO AUTHORITY OF LAW OR APPROPRIATIONS AVAILABLE FOR THE AUTHORIZATION OF CONTRACTS FOR THE RENTAL OF MOTOR VEHICLES CONTAINING STIPULATIONS FOR THE PAYMENT OF DAMAGES RESULTING TO THE MOTOR VEHICLES OPERATED BY THE GOVERNMENT UNDER RENTAL AGREEMENTS.' IN DISCUSSING THE POSSIBILITY THAT THE CLAIM MIGHT BE CONSIDERED EITHER UNDER SECTION 9 OF THE ACT OF JUNE 5, 1920 (41 STAT. 1015), OR UNDER THE ACT OF DECEMBER 28, 1922 (42 STAT. 1066), IT WAS STATED THAT "BOTH THE 1920 AND 1922 STATUTES CONTEMPLATE THE DAMAGED PROPERTY SHALL HAVE BEEN IN THE CONTROL, ETC.,OF PERSONS AND NOT LEASED TO THE UNITED STATES WHEN IT IS DAMAGED.' IT IS DESIRED TO EMPHASIZE THAT NO REASON IS GIVEN TO SUPPORT THIS CONCLUSION AND NO AUTHORITY IS CITED.

THE DECISION OF AUGUST 25, 1941, APPEARS TO BE DIRECTLY IN CONFLICT WITH A DECISION IN 4 COMP. GEN. 1028. IN THAT CASE TWO HORSES WERE HIRED FROM THEIR OWNER BY THE UNITED STATES GEOLOGICAL SURVEY PURSUANT TO THE PROVISIONS OF A WRITTEN CONTRACT, WHEREIN THE GOVERNMENT WAS BOUND TO USE REASONABLE CARE. ALTHOUGH THE CLAIM UNDER THE CONTRACT WAS DISALLOWED FOR THE REASON THAT IT WAS NOT SHOWN THAT THE GOVERNMENT FAILED TO EXERCISE REASONABLE CARE FOR THE PROTECTION OF THE ANIMALS, THE COMPTROLLER GENERAL SUGGESTED THAT "THE ONLY RELIEF WHICH COULD BE AFFORDED THE OWNER IN CASE OF NEGLIGENCE, WOULD BE UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, WHICH IS A MATTER FOR ADMINISTRATIVE DETERMINATION AND CERTIFICATION TO CONGRESS AND NOT FOR PAYMENT BY OR THROUGH THE GENERAL ACCOUNTING OFFICE.' THERE APPEARS NO LOGICAL OR LEGAL DISTINCTION BETWEEN PROPERTY SUCH AS A HORSE AND OTHER PROPERTY, AND UNDER THIS DECISION THE REMEDY AFFORDED BY THE ACT OF DECEMBER 28, 1922, SHOULD BE MADE AVAILABLE ON AN EQUAL BASIS TO ALL OWNERS REGARDLESS OF THE PARTICULAR KIND OF PROPERTY INVOLVED.

THERE WOULD SEEM TO EXIST NO BETTER PROOF OF THE INTENT OF CONGRESS REGARDING THE MEANING OF THE TERM "PRIVATELY OWNED PROPERTY" THAN THE ACTION TAKEN BY THE CONGRESS IN CONNECTION WITH APPROPRIATING MONIES TO PAY THE CLAIMS SUBMITTED TO IT UNDER THE ACT OF DECEMBER 28, 1922. CASUAL SEARCH OF THE DEFICIENCY APPROPRIATION ACTS AND ACCOMPANYING REPORTS WILL DISCLOSE THAT THE VARIOUS EXECUTIVE DEPARTMENTS HAVE SUBMITTED NUMEROUS CLAIMS TO THE CONGRESS FOR CONSIDERATION UNDER THAT ACT, COVERING DAMAGE CAUSED BY THE NEGLIGENCE OF GOVERNMENT EMPLOYEES TO EQUIPMENT AND PROPERTY RENTED TO THE GOVERNMENT AND IN ITS CUSTODY. NOT ONE SINGLE INSTANCE DID THE CONGRESS REFUSE TO MAKE AN APPROPRIATION ON THE GROUND THAT SUCH PROPERTY WAS NOT PRIVATELY OWNED. THIS IS VALID AND UNMISTAKABLY CLEAR EXAMPLE OF THE REAL INTENT OF CONGRESS WHICH MUST BE CONSIDERED, INASMUCH AS THE COURTS GIVE GREAT WEIGHT TO AN ADMINISTRATIVE INTERPRETATION LONG AND CONSISTENTLY FOLLOWED, PARTICULARLY WHEN THE CONGRESS, PRESUMABLY WITH THAT CONSTRUCTION IN MIND, HAS TAKEN ACTION CONSISTENT WITH THAT INTERPRETATION. (SEE U.S. V. CHICAGO N.S. AND M.R. CO., 288 U.S. 1, 77 L.1ED. 583, 53 S.1CT. 245; DISMUKE V. U.S., 297 U.S. 167, 80 L.1ED. 561, 56 S.1CT. 400, REHEARING DENIED IN 297 U.S. 728, 80 L.1ED. 1011, 56 S.1CT. 594; KOSHLAND V. HELVERING, 298 U.S. 441, 80 L.1ED. 1268, 56 S.1CT. 767; POE V. SEABORN, 282 U.S. 101, 75 L.1ED. 239, 51 S.1CT. 58; MCCAUGN V. HERSHEY CHOCOLATE CO., 283 U.S. 488, 75 L.1ED. 1183, 51 S.1CT. 510; COSTANZO V. TILLINGHAST, 287 U.S. 341, 77 L.1ED. 350, 53 S.1CT. 152; MURPHY OIL CO. V. BURNET, 287 U.S. 299, 77 L.1ED. 318, 53 S.1CT. 161.)

ON APRIL 8, 1937, THERE WAS FORWARDED, FOR DIRECT SETTLEMENT TO THE GENERAL ACCOUNTING OFFICE BY THE COMMISSIONER OF ACCOUNTS AND DEPOSITS, UNITED STATES TREASURY, A CLAIM SUBMITTED BY C. R. MCLEAN, ROOM 10, SPAULDING HOTEL, DULUTH, MINNESOTA, IN THE SUM OF $1,000, COVERING DAMAGE TO TWO LOCOMOTIVES WHILE IN THE CUSTODY OF THE WORKS PROGRESS ADMINISTRATION PURSUANT TO THE PROVISIONS OF CONTRACT NO. ER TPS-71-3934. ON SEPTEMBER 29, 1937, A SETTLEMENT CERTIFICATE WAS ADDRESSED TO CLAIMANT BY THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE DISALLOWING THE CLAIM AND STATING THAT "SUCH CLAIM AS THERE MAY HAVE BEEN IN THIS CASE WAS FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICES UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AND THE ADMINISTRATIVE ACTION ON CLAIMS COMING WITHIN THE PROVISION OF SAID ACT IS NOT SUBJECT TO REVIEW BY THIS OFFICE.' ON MAY 3, 1938, THE ACTING COMPTROLLER GENERAL RETURNED THE CLAIM TO THE WORKS PROGRESS ADMINISTRATION STATING THAT THE ABOVE-QUOTED SENTENCE "IS NOT TO BE VIEWED AS SUGGESTING ANY DETERMINATION BY THIS OFFICE THAT THE CLAIM IS ENTITLED TO FAVORABLE ACTION, THAT BEING THE MATTER FOR DETERMINATION BY THE HEAD OF THE ESTABLISHMENT CONCERNED UNDER THE TERMS OF THE CITED ACT.' THE WORKS PROGRESS ADMINISTRATOR, FINDING THAT THE DAMAGE WAS CAUSED BY THE NEGLIGENCE OF EMPLOYEES OF THE ADMINISTRATION, REPORTED THE CLAIM TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF DECEMBER 28, 1922. AN APPROPRIATION WAS MADE BY THE CONGRESS FOR PAYMENT OF THE CLAIM IN THE FIRST DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1939 (53 STAT. 512). REFERENCE IS MADE TO THIS CLAIM IN SENATE DOCUMENT NO. 9, 76TH CONG., ST SESS., PAGE 10. FURTHER COMMENT ON THIS POINT APPEARS UNNECESSARY. THE SECOND METHOD OF REASONING WHICH CAN BE DRAWN FROM THE DECISION IS THAT SUCH CLAIMS AS THOSE IN QUESTION CANNOT BE CONSIDERED UNDER THE CITED STATUTES FOR THE REASON THAT THERE IS A REMEDY UNDER THE PROVISIONS OF THE RENTAL CONTRACT OR THE BAILMENT CONTRACT FOR USE, AND THERE IS NO AUTHORITY TO "IMPOSE UPON THE GOVERNMENT ANY LIABILITY OR OBLIGATION ASIDE FROM AND IN ADDITION TO SUCH AS MAY BE IMPOSED UNDER THE PROVISIONS OF THE CONTRACT.' THIS LINE OF REASONING PRESUPPOSES, FIRST, THAT THE RENTAL CONTRACT CONTAINS ADEQUATE PROVISIONS FOR COMPENSATING THE OWNER FOR THE DAMAGES INCURRED, OR THAT THERE IS AN ADEQUATE REMEDY UNDER THE BAILMENT CONTRACT FOR USE AND THE LEGAL PRINCIPLES APPLICABLE THERETO; AND, SECONDLY, THAT THE CITED STATUTES CONSTITUTE A LIABILITY OR OBLIGATION "ASIDE FROM AND IN ADDITION TO" THE CONTRACT PROVISIONS.

IN CONNECTION WITH THE FIRST ASSUMPTION, IT SHOULD BE STATED THAT THE WORK PROJECTS ADMINISTRATION, ON THE BASIS OF THE DECISION IN 14 COMP. GEN. 139, WHEREIN IT WAS HELD THAT ,INSTRUCTIONS SHOULD BE ISSUED TO ALL CONTRACTING OFFICERS OF YOUR DEPARTMENT TO THE EFFECT THAT THERE SHOULD NOT BE INCORPORATED IN AGREEMENTS FOR LEASE OF MOTOR EQUIPMENT ANY STIPULATIONS ATTEMPTING TO IMPOSE ON THE UNITED STATES (ANY RESPONSIBILITY FOR) DAMAGES TO THE EQUIPMENT WHILE IN USE UNDER THE AGREEMENT," HAS REFRAINED FROM ATTEMPTING TO PROVIDE ANY CONTRACTUAL RELIEF FOR DAMAGES TO RENTED PROPERTY OR EQUIPMENT, OTHER THAN THE USUAL DUTY TO RETURN IN AS GOOD CONDITION AS WHEN RECEIVED, ORDINARY WEAR AND TEAR EXCEPTED. THUS, THERE IS REACHED AN ANOMALOUS SITUATION WHEREBY VENDORS OF RENTED PROPERTY OR EQUIPMENT, ON THE BASIS OF THAT RULING IN 14 COMP. GEN. 139, HAVE BEEN DEPRIVED OF A REMEDY WHICH IT IS NOT STATED IS THE ONLY ONE THAT EXISTS IN THE CIRCUMSTANCES. ALTHOUGH IT MAY BE CONTENDED THAT A REMEDY EXISTS UNDER THE BAILMENT CONTRACT FOR USE AND THE LEGAL PRINCIPLES APPLICABLE THERETO, IT IS SUBMITTED THAT SUCH IS ILLUSORY, INASMUCH AS THE COMPTROLLER GENERAL HAS CONSISTENTLY HELD THAT APPROPRIATED FUNDS ARE NOT AVAILABLE FOR THE PAYMENT OF DAMAGE CLAIMS.

HOWEVER, IT IS NOT BELIEVED THAT THE REMEDY AFFORDED BY THE CITED STATUTES CAN BE SAID TO BE ,ASIDE FROM AND IN ADDITION TO" THE OBLIGATIONS IMPOSED BY THE PROVISIONS OF THE CONTRACT. THE EFFECT OF THE DECISION ON THIS POINT IS TO OVERRULE THE WELL-ESTABLISHED DOCTRINE THAT, IN THE CASE OF A BAILOR-BAILEE RELATIONSHIP, WHETHER IMPOSED BY A SPECIAL CONTRACT OR BY LAW, THE BAILOR HAS, IN THE EVENT OF A VIOLATION OF A DUTY BY THE BAILEE, THE OPTION OF BRINGING AN ACTION EX CONTRACTO FOR THE BREACH OF THE CONTRACTUAL DUTY, OR, WAIVING THIS RIGHT, BY SUING EX DELICTO FOR NEGLIGENCE IN THE PERFORMANCE OF THE CONTRACTUAL DUTIES. (IN RE COE, 169 F. 1002; HACKNEY V. PERRY, 44 SO. 1209; H. J. KEITH CO. V. BOOTH FISHERIES CO., 87 A. 715; LA PLANTE V. DU PONT, 193 N.W. 820; WHITE SWAN LAUNDRY V. BLUE, 137 SO. 898; DEVINNE HALLENBECK CO. V. AUTOTYRE CO., 154 A. 170; CHRISTENSEN V. PUGH, 36 F. (2D) 100; 6 AMERICAN JURISPRUDENCE 428, AND CASES CITED THEREIN; ANNOTATION IN 12 L.R.A. ( N.S.) 925). IN THE KEITH CASE, THE COURT WENT SO FAR AS TO STATE THAT ,WHEN THE RELATION OF BAILOR AND BAILEE IS ONCE SHOWN BY CONTRACT OR OTHERWISE, THE USUAL AND APPROPRIATE REMEDY IS TORT, ALTHOUGH THE PLAINTIFF MAY AT HIS ELECTION SUE IN TORT OR FOR BREACH OF THE CONTRACT. THERE IS AMPLE AUTHORITY TO SUSTAIN SUCH CONCLUSION.'

INASMUCH AS YOUR OPINION WENT BEYOND THE SCOPE OF THE ORIGINAL QUESTION SUBMITTED IN THE ADMINISTRATOR'S LETTER OF JULY 28, 1941, AND HELD THAT THE TERM "PRIVATELY OWNED PROPERTY" AS USED IN THE APPLICABLE STATUTES, DID NOT CONTEMPLATE PROPERTY RENTED TO THE GOVERNMENT, IT IS REQUESTED THAT THE MATTER BE RECONSIDERED.

SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942, 55 STAT. 396, 405, PROVIDES:

THE COMMISSIONER IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY FROM THE APPROPRIATION IN SECTION 1 HEREOF ANY CLAIM ON ACCOUNT OF DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE OF THE WORKS PROGRESS ADMINISTRATION OR THE WORK PROJECTS ADMINISTRATION WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. NO CLAIM SHALL BE CONSIDERED HEREUNDER WHICH IS IN EXCESS OF $500, OR WHICH IS NOT PRESENTED IN WRITING WITHIN ONE YEAR FROM THE DATE OF ACCRUAL THEREOF. ACCEPTANCE BY A CLAIMANT OF THE AMOUNT ALLOWED ON ACCOUNT OF HIS CLAIM SHALL BE DEEMED TO BE IN FULL SETTLEMENT THEREOF, AND THE ACTION UPON SUCH CLAIM SO ACCEPTED BY THE CLAIMANT SHALL BE CONCLUSIVE.

THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, MENTIONED IN THE ABOVE QUOTED LETTER, READS, IN PART, AS FOLLOWS:

SEC. 2. THAT AUTHORITY IS HEREBY CONFERRED UPON THE HEAD OF EACH DEPARTMENT AND ESTABLISHMENT ACTING ON BEHALF OF THE GOVERNMENT OF THE UNITED STATES TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE ANY CLAIM ACCRUING AFTER APRIL 6, 1917, ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000, CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. SUCH AMOUNT AS MAY BE FOUND TO BE DUE TO ANY CLAIMANT SHALL BE CERTIFIED TO CONGRESS AS A LEGAL CLAIM FOR PAYMENT OUT OF APPROPRIATIONS THAT MAY BE MADE BY CONGRESS THEREFOR, TOGETHER WITH A BRIEF STATEMENT OF THE CHARACTER OF EACH CLAIM, THE AMOUNT CLAIMED, AND THE AMOUNT ALLOWED: PROVIDED, THAT NO CLAIM SHALL BE CONSIDERED BY A DEPARTMENT OR OTHER INDEPENDENT ESTABLISHMENT UNLESS PRESENTED TO IT WITHIN ONE YEAR FROM THE DATE OF THE ACCRUAL OF SAID CLAIM.

SEC. 3. THAT ACCEPTANCE BY ANY CLAIMANT OF THE AMOUNT DETERMINED UNDER THE PROVISIONS OF THIS ACT SHALL BE DEEMED TO BE IN FULL SETTLEMENT OF SUCH CLAIM AGAINST THE GOVERNMENT OF THE UNITED STATES.

THERE CAN BE NO DOUBT THAT SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, SUPRA, RELATES TO THE SAME CLASS OF CLAIMS AS THOSE COVERED BY THE ACT OF DECEMBER 28, 1922, AND THIS POINT APPEARS TO BE CONCEDED IN THE ABOVE-QUOTED LETTER. THE ONLY MATERIAL DIFFERENCE BETWEEN THE TWO STATUTES IS THAT UNDER SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, SUPRA, THE COMMISSIONER OF WORK PROJECTS IS AUTHORIZED TO PAY CLAIMS NOT IN EXCESS OF $500 FROM THE CURRENT APPROPRIATION RATHER THAN TO CERTIFY THEM TO THE CONGRESS FOR ITS CONSIDERATION. OTHERWISE THE TWO STATUTES CONFER ADMINISTRATIVE AUTHORITY TO "CONSIDER, ASCERTAIN, ADJUST," AND DETERMINE ANY CLAIM ,ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY" CAUSED BY THE "NEGLIGENCE" OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. NO SUCH CLAIM IS TO BE CONSIDERED UNLESS PRESENTED WITHIN ONE YEAR FROM THE DATE OF ACCRUAL THEREOF; AND ACCEPTANCE BY A CLAIMANT OF THE AMOUNT ALLOWED UNDER EITHER STATUTE IS TO BE DEEMED IN FULL SETTLEMENT. SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, SUPRA, APPEARS, THEREFORE, TO BE NO MORE THAN SUPPLEMENTAL TO THE 1922 STATUTE. AUTHORITY SUBSTANTIALLY IDENTICAL TO THAT CONSIDERED IN SAID SECTION 20 FIRST APPEARED IN SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, 52 STAT. 815, AND WAS EXPLAINED BY THE HOUSE OF REPRESENTATIVES COMMITTEE ON APPROPRIATIONS, IN REPORT NO. 2317, SEVENTY-FIFTH CONGRESS, THIRD SESSION, AS FOLLOWS:

SECTION 20, A NEW SECTION, AUTHORIZES THE ADMINISTRATOR OF THE WORKS PROGRESS ADMINISTRATION TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE AND PAY FROM THE APPROPRIATION TO THE WORKS PROGRESS ADMINISTRATION IN THIS TITLE CLAIMS ARISING OUT OF OPERATIONS OCCURRING AFTER THE DATE OF THE JOINT RESOLUTION ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY CAUSED BY NEGLECT OF AN EMPLOYEE OF THE WORKS PROGRESS ADMINISTRATION OR THE NATIONAL YOUTH ADMINISTRATION WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. THE AUTHORITY IS LIMITED TO CLAIMS NOT IN EXCESS OF $500 PRESENTED IN WRITING WITHIN 1 YEAR FROM THE DATE OF ACCRUAL THEREOF AND ANY ALLOWANCE BY THE ADMINISTRATOR TO BE ACCEPTED IN FULL SETTLEMENT. UNDER EXISTING LAW THE ADMINISTRATOR HAS THIS AUTHORITY UP TO $1,000 BUT MUST CERTIFY ALL SUCH ADJUDICATIONS TO CONGRESS FOR APPROPRIATION PRIOR TO PAYMENT. UNDER THIS SECTION MANY SMALL CLAIMS CAN BE EXPEDITIOUSLY HANDLED TO THE GREAT ADVANTAGE OF THE GOVERNMENT AND TO THE SATISFACTION OF THE CLAIMANTS IN RECEIVING PROMPT PAYMENT. CLAIMS BETWEEN $500 AND $1,000 WILL CONTINUE TO BE ADJUDICATED BY THE ADMINISTRATOR AND CERTIFIED TO CONGRESS FOR APPROPRIATION. ( ITALICS SUPPLIED.)

SINCE SECTION 20 OF THE EMERGENCY RELIEF ACT, FISCAL YEAR 1942, RELATES TO THE SAME CLASS OF CLAIMS AS THE 1922 STATUTE IT NECESSARILY FOLLOWS THAT THE INTENTION OF THE CONGRESS AS EXPRESSED IN THE 1922 STATUTE IS CONTROLLING AS TO THE CLASS OF CLAIMS COVERED BY SAID SECTION 20. ASCERTAINING THAT INTENTION IT IS APPROPRIATE TO CONSIDER THE CIRCUMSTANCES OCCASIONING PASSAGE OF THE ACT, THE OBJECT OR PURPOSE WHICH THE CONGRESS HAD IN MIND, THE TITLE OF THE ACT, ETC. UNITED STATES V. KATZ, 271 U.S. 354; BULLARD V. UNITED STATES, 81 CT.1CLS. 939; UNITED STATES V. TOD, 285 F. 847; AND IN RE MARTIN, 283 F. 833.

IT IS A FUNDAMENTAL PRINCIPLE OF PUBLIC LAW, AFFIRMED BY A LONG SERIES OF DECISIONS OF THE SUPREME COURT, THAT NO SUIT CAN BE MAINTAINED IN ANY COURT AGAINST THE UNITED STATES WITHOUT EXPRESS AUTHORITY OF THE CONGRESS. UNITED STATES V. CLARKE, 8 PET. 436; THE SIREN, 7 WALL, 152; BELKNAP V. SCHILD, 161 U.S. 10; AND STANLEY V. SCHWALBY, 162 U.S. 255. HOWEVER, BY SUCCESSIVE ACTS OF CONGRESS, THE UNITED STATES HAS CONSENTED TO BE SUED UPON ITS CONTRACTS EITHER IN THE COURT OF CLAIMS OR IN THE DISTRICT COURTS OF THE UNITED STATES. (SEE 28 U.S.C.A. 41 (20), 250 (1).) AND BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, THIS OFFICE IS AUTHORIZED TO SETTLE AND ADJUST CLAIMS AND DEMANDS AGAINST THE UNITED STATES. BUT THE UNITED STATES HAS NOT CONSENTED, GENERALLY, TO BE LIABLE IN SUITS FOUNDED IN TORT, FOR WRONGS DONE BY ITS OFFICERS, THOUGH IN THE DISCHARGE OF THEIR OFFICIAL DUTIES. GIBBONS V. UNITED STATES, 8 WALL. 269; MORGAN V. UNITED STATES, 14 WALL. 531; LANGFORD V. UNITED STATES, 101 U.S. 341; UNITED STATES V. JONES, 131 U.S. 1; GERMAN BANK V. UNITED STATES, 148 U.S. 573; AND HILL V. UNITED STATES, 149 U.S. 593. THEREFORE, PERSONS WHO HAVE SUFFERED DAMAGE AS A RESULT OF TORTS COMMITTED BY OFFICERS AND EMPLOYEES OF THE GOVERNMENT GENERALLY HAVE HAD NO ENFORCEABLE RIGHTS AGAINST THE UNITED STATES. CONSEQUENTLY, IT BECAME THE COMMON PRACTICE IN SUCH CASES FOR PERSONS TO SEEK THE AID OF THEIR REPRESENTATIVES IN CONGRESS IN OBTAINING ENACTMENT OF A PRIVATE BILL FOR THEIR RELIEF. SUCH WAS THE STATE OF THE LAW AT THE TIME THE BILL H.R. 7912, WHICH BECAME THE ACT OF DECEMBER 28, 1922, WAS CONSIDERED BY THE SIXTY SEVENTH CONGRESS AND THE LEGISLATIVE HISTORY OF SAID BILL SHOWS THAT ITS PRIMARY PURPOSE WAS TO RELIEVE THE CONGRESS OF THE NECESSITY OF CONSIDERING AND DETERMINING THE MERITS OF THE NUMEROUS CLAIMS FOR RELIEF BEING PRESENTED TO THE CONGRESS BY PERSONS WHO HAD BEEN DAMAGED AS A RESULT OF TORTS COMMITTED BY OFFICERS AND EMPLOYEES OF THE GOVERNMENT BUT WHO HAD NO CLAIMS LEGALLY ENFORCEABLE AGAINST THE GOVERNMENT. IN THE ATTORNEY GENERAL'S OPINION OF AUGUST 12, 1936 (38 OP. ATTY. GEN. 514), CITED IN THE ABOVE-QUOTED LETTER, IT IS STATED THAT THE PURPOSE OF THE ACT OF DECEMBER 28, 1922, WAS "TO RELIEVE THE CONGRESS OF THE BURDEN OF PASSING UPON NUMEROUS SMALL MERITORIOUS CLAIMS AGAINST THE GOVERNMENT NOT WITHIN THE JURISDICTION OF THE COURTS" AND SUCH STATEMENT IS COMPLETELY SUPPORTED BY THE COMMITTEE REPORTS AND CONGRESSIONAL DEBATES ON THE BILL.

THUS, IN HOUSE REPORT NO. 342, SIXTY-SEVENTH CONGRESS, FIRST SESSION, THE BILL H.R. 7912 WAS EXPLAINED, IN PART, AS FOLLOWS:

WHILE IN THE CASE OF A FEW OF THE DEPARTMENTS THERE IS AUTHORITY OF LAW FOR THE SETTLEMENT OF CLAIMS IN THE NATURE OF TORTS, THERE IS NO GENERAL LAW UNDER WHICH ALL OF THE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS CAN SETTLE CLAIMS OF THE CHARACTER OF THOSE CONTEMPLATED IN THE BILL.

NEARLY ONE-THIRD OF THE BILLS FILED WITH THE COMMITTEE ON CLAIMS ARE FOR AMOUNTS LESS THAN $1,000, AND THE MAJORITY OF THESE ARE CLAIMS FOR DAMAGES ARISING FROM ACCIDENTS INVOLVING GOVERNMENT-OWNED TRUCKS. CLAIMANTS HAVE NECESSARILY BEEN TOLD THAT THERE IS NO APPROPRIATION FOR THE PAYMENT OF SUCH CLAIMS AND THAT THE GOVERNMENT CANNOT BE SUED UPON ANY CAUSE OF ACTION SOUNDING IN TORT. ( ROBERTSON V. SICHEL, 127 U.S., 505; BELKNAP V. SCHILD, 161 U.S., 10; STANLEY V. SCHWALBY, 162 U.S., 255). * * * ( * * *

* * * LEGISLATION PROVIDED FOR IN THIS BILL WILL RELIEVE CONGRESS OF THE NECESSITY IN PASSING UPON CLAIMS THAT COULD BE EASILY SETTLED BY THE DEPARTMENTS, ETC.

AS THERE IS NO FUND FROM WHICH THESE CLAIMS CAN BE PAID, IT IS PROVIDED THAT WHEN SETTLED THEY SHALL BE REPORTED TO CONGRESS FOR APPROPRIATION. AND AS INDICATING THAT THE ACT OF DECEMBER 28, 1922, DOES NOT APPLY TO CLAIMS WHICH ARE LEGALLY ENFORCEABLE AGAINST THE GOVERNMENT ARE THE FOLLOWING STATEMENTS MADE BY MEMBERS OF THE HOUSE OF REPRESENTATIVES IN EXPLANATION OF THE BILL DURING THE DEBATE THEREON ( CONGRESSIONAL RECORD, VOL. 62, PT. 3, PP. 2283-2299):

MR. BLANTON. I WANT MY COLLEAGUES TO REMEMBER THIS FACT CONCERNING THIS BILL, THAT ANY LEGAL CLAIM DOES NOT NEED THIS LEGISLATION.

MR. SNELL. IF YOU HAD A LEGAL CLAIM OF $75 AGAINST THIS GOVERNMENT, WHAT WOULD YOU DO WITH IT?

MR. BLANTON. IT WOULD BE COLLECTIBLE THROUGH THE COURT OF CLAIMS. THIS BILL DOES NOT APPLY TO LEGAL CLAIMS.

MR. SNELL. I AM TAKING WHAT YOU CALL LEGAL CLAIMS.

MR. BLANTON. THIS BILL IS SEEKING A REMEDY FOR PAYMENT OF CLAIMS THAT HAVE NO LEGAL STATUS WHATEVER.

MR. SNELL. THAT IS WHAT WE ARE TALKING ABOUT.

MR. BLANTON. IF THEY HAD LEGAL STATUS, MEMBERS WOULD PURSUE SOME OTHER METHOD OF COLLECTING THEM; BUT THIS BILL IS WITH RESPECT TO CLAIMS THAT HAVE NO LEGAL STATUS. IT IS WITH RESPECT TO CLAIMS THAT YOU CANNOT COLLECT BY LAW; IT IS WITH RESPECT TO CLAIMS THE PAYMENT OF WHICH DEPENDS ENTIRELY UPON THE GRATUITY OF THE CONGRESS. ( * * * * * *

MR. DAVIS OF TENNESSEE. * * * AS STATED BY THE GENTLEMAN FROM TEXAS ( MR. BLANTON), IT IS NOT A QUESTION OF CLAIMS BASED UPON LEGAL RIGHTS. IS A CASE OF MORAL OBLIGATIONS * * *. ( *

MR. MANN. * * * THERE IS NO PRACTICAL CHANCE OF PAYING THESE CLAIMS UNDER THE PRESENT SYSTEM. FOR MYSELF--- AND I HAVE NO CRITICISM TO MAKE OF OTHERS--- I WILL NOT INTRODUCE A CLAIM FOR A SMALL AMOUNT TO GO THROUGH THE MACHINERY OF THIS HOUSE. I THINK THE COMMITTEE ON CLAIMS OUGHT TO HAVE THE OPPORTUNITY TO CONSIDER LARGER CLAIMS AGAINST THE GOVERNMENT AND TO GIVE THEM CONSIDERATION INSTEAD OF SPENDING THEIR TIME CONSIDERING CLAIMS OF $50 OR $500. WE MUST CHANGE OUR SYSTEM IN SOME WAY; WE MUST MAKE PROVISION IN SOME WAY SO THAT CLAIMS AGAINST THE GOVERNMENT CAN BE PROPERLY CONSIDERED. IT IS TRUE THAT ALL LEGAL CLAIMS AGAINST THE GOVERNMENT IN ONE SENSE ARE NOW PROMPTLY PAID, BUT THE GOVERNMENT DOES NOT PERMIT ITSELF TO BE SUED IN THE COURT OF CLAIMS OR ELSEWHERE FOR INJURIES CAUSED BY TORTS. THE GOVERNMENT CANNOT AFFORD TO RUN GREAT ARMY TRUCKS ALL OVER THE COUNTRY OVER THE HIGHWAYS OF THE COUNTRY AND SAY TO THE MEN RUNNING THEM,"YOU CAN RUN INTO ANY MAN'S MACHINE AS YOU PLEASE, DAMAGE AND RUIN HIS PROPERTY, AND THERE IS NO RESPONSIBILITY.' AND THERE IS NONE NOW. SO I THINK THIS MEASURE IS A VERY MODERATE MEASURE, A VERY JUST MEASURE, ATTENDED WITH NO DIFFICULTY, ATTENDED WITH NO DANGER, AND I HOPE IT MAY PASS.

FURTHERMORE, THE TITLE OF THE ACT ITSELF--- "AN ACT TO PROVIDE A METHOD FOR THE SETTLEMENT OF CLAIMS ARISING AGAINST THE GOVERNMENT OF THE UNITED STATES IN SUMS NOT EXCEEDING $1,000 IN ANY ONE CASE"--- INDICATES THAT THE ACT DOES NOT APPLY TO LEGAL CLAIMS FOR THE ENFORCEMENT OF WHICH METHODS ALREADY HAVE BEEN PROVIDED.

IT APPEARS CLEAR, THEREFORE, AS STATED IN THE OPINION OF THE ATTORNEY GENERAL, SUPRA, THAT THE ACT OF DECEMBER 28, 1922, WAS ENACTED WITH RESPECT TO SMALL MERITORIOUS CLAIMS AGAINST THE GOVERNMENT WHICH WERE NOT LEGALLY ENFORCEABLE.

HAVING REGARD FOR THE RELATION OF SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942, TO THE ACT OF DECEMBER 28, 1922, AND THE FACT THAT BOTH PROVISIONS OF LAW RELATE TO THE SAME CLASS OF CLAIMS, IT MUST BE HELD THAT THE COMMISSIONER OF WORK PROJECTS IS NOT AUTHORIZED UNDER SAID SECTION 20 TO PAY FROM APPROPRIATIONS MADE AVAILABLE BY THE CURRENT EMERGENCY RELIEF APPROPRIATION ACTS, CLAIMS FOR DAMAGES TO OR LOSS OF PRIVATE PROPERTY CAUSED BY THE NEGLIGENCE OF WORKS PROGRESS OR WORK PROJECTS ADMINISTRATION EMPLOYEES, WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, IN THOSE CASES IN WHICH THE CLAIMANTS OTHERWISE HAVE A LEGAL REMEDY AGAINST THE GOVERNMENT. SEE IN THIS CONNECTION THE DECISION TO YOU, DATED NOVEMBER 18, 1939, B-6466 (19 COMP. GEN. 506), CITED IN THE ABOVE-QUOTED LETTER, WHEREIN IT WAS STATED THAT THE TERM "ANY CLAIM" AS USED IN A SIMILAR PROVISION OF A PRIOR APPROPRIATION ACT "WOULD APPEAR TO COVER ALL CLAIMS OF THE TYPE DESCRIBED WHEN FILED BY ANY PERSON TO WHOM THE UNITED STATES WOULD HAVE BEEN LIABLE PRIOR TO THE ENACTMENT OF THE STATUTE BUT FOR ITS SOVEREIGN IMMUNITY.' ( ITALICS SUPPLIED.)

AND THIS BRINGS UP THE QUESTION OF WHETHER CLAIMS FOR DAMAGES TO, OR LOSS OF, PROPERTY RENTED TO THE GOVERNMENT, RESULTING FROM THE NEGLIGENCE OF GOVERNMENT EMPLOYEES IN THE PERFORMANCE OF THEIR DUTIES, ARE LEGALLY ENFORCEABLE AGAINST THE UNITED STATES. THAT THE EQUIPMENT RENTAL CONTRACTS UNDER DISCUSSION CREATE A BAILMENT RELATIONSHIP BETWEEN THE CONTRACTORS AS BAILORS AND THE GOVERNMENT AS BAILEE, FOR THE MUTUAL BENEFIT OF THE CONTRACTING PARTIES, IS HARDLY OPEN TO QUESTION AND APPEARS TO BE CONCEDED. UNDER SUCH A RELATIONSHIP THE BAILEE ORDINARILY IS RESPONSIBLE FOR NEGLIGENCE IN THE USE AND CARE OF THE EQUIPMENT BAILED AND MUST RESPOND IN DAMAGES IN THE EVENT OF FAILURE TO RETURN THE BAILED PROPERTY, AT THE TERMINATION OF THE BAILMENT, IN THE SAME CONDITION AS THAT IN WHICH IT WAS RECEIVED, REASONABLE WEAR AND TEAR EXCEPTED. THIS IS A RESPONSIBILITY IMPLIED BY LAW EVEN THOUGH IT IS NOT EXPRESSLY PROVIDED FOR IN THE CONTRACT. 6 C.J. 1114, 1121, 1139. AND WHILE THE LIABILITY FOR DAMAGES IN SUCH CASES RESULTS FROM THE NEGLIGENCE OF THE BAILEE OR ITS AGENTS, THE EXPRESS OR IMPLIED DUTY OF THE BAILEE NOT TO BE NEGLIGENT IN THE USE AND CARE OF THE BAILED PROPERTY HAS ITS SOURCE IN CONTRACT. SINCE THE LIABILITY HAS ITS SOURCE IN CONTRACT BOTH THE SUPREME COURT OF THE UNITED STATES AND THE COURT OF CLAIMS HAVE HELD THAT THE UNITED STATES IS LIABLE FOR NEGLIGENCE UNDER SUCH CONTRACTS AND THAT SUCH LIABILITY MAY BE ENFORCED IN THE COURTS. SEE UNITED STATES V. BOSTWICK, 94 U.S. 53, 68; PINTSCH COMPRESSING CO. V. UNITED STATES, 61 CT.CLS. 858, 863; AND THE GULF TRANSIT COMPANY V. UNITED STATES, 43 CT.CLS. 183. IN THE PINTSCH COMPRESSING CO. CASE, SUPRA, THE COURT OF CLAIMS SUMMED UP THE RESPONSIBILITY OF THE UNITED STATES UNDER A MUTUAL BENEFIT BAILMENT IN THESE WORDS:

THE REAL QUESTION IS AS TO THE LIABILITY OF THE UNITED STATES FOR THE VALUE OF THE TANKS. THE RECORD LEAVES NO ROOM FOR DOUBT THAT THE UNITED STATES RENTED THE TANKS. IT ALSO SATISFACTORILY APPEARS THAT THEY WERE SO DAMAGED THAT THEY COULD NOT BE RETURNED TO THE PLAINTIFF IN SERVICEABLE CONDITION FOR ITS USES. IT IS TRUE THAT THE UNITED STATES MADE NO CONTRACT TO COMPENSATE THE PLAINTIFF FOR THE VALUE OF THE TANKS IF THEY WERE NOT RETURNED IN GOOD CONDITION, BUT THE LAW IMPOSED THAT OBLIGATION. THE CONTRACT WAS ONE OF BAILMENT FOR HIRE IMPOSING THE OBLIGATION TO RETURN THE RENTED PROPERTY IN AS GOOD CONDITION AS WHEN RECEIVED, NATURAL WEAR EXCEPTED, AND FAILING IN THIS, TO COMPENSATE TO THE EXTENT OF THE VALUE OF THE PROPERTY WHEN RECEIVED.

THE RIGHTS AND OBLIGATIONS OF THE PARTIES SEEM TO BE SO CLEARLY DEFINED THAT LENGTHY DISCUSSION IS RENDERED UNNECESSARY. WE HAVE CONCLUDED THAT THE PLAINTIFF IS ENTITLED TO RECOVER THE ASCERTAINED VALUE OF THE TANKS AND HAVE DIRECTED JUDGMENT ACCORDINGLY.

FURTHERMORE, UNDER SECTION 236 OF THE REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 42 STAT. 24, IT IS PROVIDED THAT ALL CLAIMS AND DEMANDS WHATEVER AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THIS OFFICE. IT LONG HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT CLAIMS RESULTING FROM THE FAILURE OF THE GOVERNMENT TO EXERCISE THE PROPER DEGREE OF CARE UNDER ITS BAILMENT CONTRACTS ARE COGNIZABLE UNDER SAID SECTION AND THAT APPROPRIATED FUNDS MAY BE USED TO SATISFY SUCH CLAIMS WHEN PROPERLY ESTABLISHED. SEE 9 COMP. DEC. 488; 12 ID. 500; 16 ID. 68 AND CASES THERE CITED; 18 ID. 149; 21 ID. 47; 24 ID. 606; AND 8 COMP. GEN. 448. CF. 6 COMP. DEC. 953; 7 ID. 400; 19 ID. 131; 27 ID. 299; 1 COMP. GEN. 192; 5 ID. 253; ID. 557; 7 ID. 653; 15 ID. 929; 18 ID. 8; AND 20 ID. 632. ALSO, SEE 20 COMP. GEN. 573. IN EVIDENT RECOGNITION THEREOF THE TREASURY DEPARTMENT FOR YEARS HAS FORWARDED TO THIS OFFICE FOR SETTLEMENT, WITH THE KNOWLEDGE AND APPROVAL OF THE WORKS PROGRESS ADMINISTRATION OR WORK PROJECTS ADMINISTRATION, NUMEROUS CLAIMS FOR DAMAGES TO BAILED PROPERTY CAUSED BY THE NEGLIGENCE OF GOVERNMENT EMPLOYEES IN CARRYING ON THE ACTIVITIES OF SUCH AGENCIES AND THIS OFFICE HAS ALLOWED OR DISALLOWED PAYMENT THEREOF AS REQUIRED BY THE LAW AND THE FACTS IN EACH CASE. MANY SUCH CLAIMS NOW ARE PENDING BEFORE THIS OFFICE.

IT MUST BE APPARENT, ALSO, THAT THE CONGRESS DID NOT INTEND, BY THE ACT OF DECEMBER 28, 1922, OR SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, SUPRA, TO LEGISLATE WITH RESPECT TO ENFORCEABLE CLAIMS AGAINST THE GOVERNMENT IF FOR NO OTHER REASON THAN THAT THE TERMS AND CONDITIONS OF SUCH LEGISLATION ARE WHOLLY INCONSISTENT WITH OTHER LEGISLATION WITH RESPECT TO ENFORCEABLE CLAIMS. THUS, IN BOTH STATUTES, THERE IS A 1-YEAR PERIOD OF LIMITATION WITHIN WHICH TO FILE CLAIMS ALTHOUGH AS TO THIS OFFICE THE STATUTE OF LIMITATIONS IS 10 YEARS (54 STAT. 1061) AND AS TO THE COURT OF CLAIMS THE PERIOD OF LIMITATIONS IS 6 YEARS (28 U.S.C.A. 262). IT WOULD HARDLY BE CONTENDED, IN VIEW OF WHAT HAS BEEN SAID HEREINBEFORE, THAT A CLAIMANT WOULD HAVE NO REMEDY BEFORE THIS OFFICE OR THE COURT OF CLAIMS IN THESE BAILMENT CASES BECAUSE THE CLAIMS WERE NOT FILED WITHIN THE 1-YEAR PERIOD PRESCRIBED IN THE SAID SECTION 20.

THAT SECTION 20 APPLIES EXCLUSIVELY TO TORT CLAIMS APPEARS TO HAVE BEEN THE VIEW OF THE COURT IN THE CASE OF CARVER V. HAYNES, ET AL., 37 F.1SUPP. 607, DECIDED FEBRUARY 26, 1941. THAT CASE INVOLVED THE WORK PROJECTS ADMINISTRATION AND SECTION 26 OF A PRIOR APPROPRIATION ACT SUBSTANTIALLY IDENTICAL WITH SECTION 20 NOW UNDER CONSIDERATION; AND WITH REFERENCE TO THE SAID SECTION 26 THE COURT STATED:

* * * WHILE THERE IS NO COMMON LAW LIABILITY AGAINST THE GOVERNMENT FOR A TORT, SUCH IMMUNITY MAY BE WAIVED. IN THE ACT UNDER DISCUSSION, CONGRESS HAS LIMITED THE LIABILITY TO PRIVATELY OWNED PROPERTY TO $500 AND PROVIDES THE PROCEDURE. CONGRESS INTENDED CLEARLY TO LIMIT THE LIABILITY OF THE DEFENDANT GOVERNMENT AGENCIES. ( ITALICS SUPPLIED.) LIKEWISE SECTION 20 OF THE ACT HERE CONSIDERED LIMITS THE LIABILITY OF THE GOVERNMENT BUT I ASSUME IT WOULD NOT SERIOUSLY BE CONTENDED THAT, UNDER A BAILMENT CONTRACT FOR THE RENTAL OF EQUIPMENT, A CLAIMANT MUST PROCEED UNDER SECTION 20, AND NOT IN THE COURTS, AND MAY NOT RECOVER IN EXCESS OF $500 EVEN THOUGH THE DAMAGE TO ITS EQUIPMENT, CAUSED BY NEGLIGENCE OF GOVERNMENT EMPLOYEES IN THEIR USE THEREOF, FAR EXCEEDS THAT AMOUNT.

INSOFAR AS CONCERNS AN ELECTION OF REMEDIES, IT MAY BE STATED THAT SUCH DOCTRINE HAS NO APPLICATION WHERE A PARTY HAS IN FACT ONLY ONE AVAILABLE REMEDY, ALTHOUGH HE MAY THINK HE HAS ANOTHER WHICH HE PURSUES WITHOUT AVAIL. 20 C.J. 6, 21. AS HEREINBEFORE SHOWN, SECTION 20 OF THE APPROPRIATION ACT HERE INVOLVED AFFORDS NO REMEDY AGAINST THE FAILURE OF THE GOVERNMENT TO EXERCISE THE PROPER DEGREE OF CARE WITH RESPECT TO EQUIPMENT RENTED UNDER ITS BAILMENT CONTRACTS. CONSEQUENTLY, THERE IS NO BASIS FOR AN ELECTION OF REMEDIES. BUT EVEN IF IT COULD BE CONCEDED THAT SECTION 20 APPLIES TO SUCH CASES, IT WELL MAY BE DOUBTED THAT SAID SECTION 20 IS NOT LEGALLY ENFORCEABLE AGAINST THE COMMISSIONER ( CARVER V. HAYNES ET AL., SUPRA). THEREFORE SHOULD A LEGAL CLAIM BE FILED UNDER SECTION 20 AND BE DENIED BY THE COMMISSIONER THERE WOULD APPEAR TO BE NO PROPER BASIS, UPON THE SUBSEQUENT PRESENTATION OF THE CLAIM TO THIS OFFICE OR THE COURTS, TO BAR THE CLAIMANT ON THE GROUND THAT THE CLAIMANT PREVIOUSLY HAD ELECTED TO PROCEED UNDER SECTION 20. WHERE THERE ARE IN FACT TWO REMEDIES, AN ELECTION TO PURSUE ONE IS A BAR TO A SUBSEQUENT PROCEEDING BASED UPON THE OTHER.

THIS OFFICE CONCURS IN THE VIEW EXPRESSED IN THE ABOVE-QUOTED LETTER OF OCTOBER 9, 1941, THAT THE TERM "PRIVATELY OWNED PROPERTY" AS USED IN SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942, HAS NO DIFFERENT MEANING THAN THE TERM "PRIVATELY OWNED PROPERTY" AS USED IN THE ACT OF DECEMBER 28, 1922. HOWEVER, INSOFAR AS THE EQUIPMENT RENTAL CONTRACTS UNDER CONSIDERATION BE CONCERNED, FURTHER DISCUSSION OF THE MEANING OF SUCH TERM WOULD APPEAR TO BE UNNECESSARY BECAUSE, AS SHOWN ABOVE, THE SAID SECTION 20 DOES NOT AUTHORIZE PAYMENT OF CLAIMS FOR DAMAGE TO THE RENTED EQUIPMENT CAUSED BY THE NEGLIGENCE OF GOVERNMENT EMPLOYEES IN CONNECTION WITH THE USE THEREOF.

THE FACT THAT THE CONGRESS MAY HAVE APPROPRIATED FUNDS TO PAY NEGLIGENCE CLAIMS ARISING OUT OF BAILMENT CONTRACTS WHICH HAVE BEEN REPORTED TO IT AS UNDER THE ACT OF DECEMBER 28, 1922, IS NOT CONTROLLING IN THE MATTER HERE INVOLVED. IT IS WITHIN THE POWER OF THE CONGRESS, OF COURSE, TO APPROPRIATE FUNDS FOR THE PAYMENT OF ANY SPECIFIC CLAIMS PRESENTED TO IT AND WHEN IT HAS DONE SO IT IS NOT WITHIN THE AUTHORITY OF THIS OFFICE TO QUESTION THE EXERCISE OF THAT POWER. BUT THE ADMINISTRATIVE CERTIFICATION OF A CLAIM TO CONGRESS FOR ITS CONSIDERATION AND FOR AN APPROPRIATION IS AN ENTIRELY DIFFERENT MATTER THAN THE ADMINISTRATIVE PAYMENT OF A CLAIM FROM FUNDS APPROPRIATED FOR THE AUTHORIZED ACTIVITIES OF AN AGENCY OF THE GOVERNMENT. IN THE LATTER EVENT IT IS WITHIN THE AUTHORITY OF THIS OFFICE --- AND A PART OF ITS DUTY--- TO WITHHOLD CREDIT FOR ANY SUCH EXPENDITURE UNLESS MADE FOR THE PURPOSES AND OBJECTS FOR WHICH THE FUNDS SOUGHT TO BE CHARGED WERE APPROPRIATED AND IN ACCORDANCE WITH THE TERMS OF THE ACTS MAKING THE APPROPRIATIONS AND OTHER APPLICABLE STATUTES. FOR REASONS HEREINBEFORE STATED, IT APPEARS CLEAR THAT THE CONGRESS DID NOT INTEND, IN SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1942, TO AUTHORIZE THE ADMINISTRATIVE PAYMENT OF CLAIMS ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY BAILED TO THE GOVERNMENT EVEN THOUGH SUCH DAMAGE OR LOSS BE CAUSED BY THE NEGLIGENCE OF GOVERNMENT EMPLOYEES. TO THE EXTENT THAT ANY DECISIONS OF MY PREDECESSORS MAY APPEAR TO BE IN CONFLICT WITH WHAT IS HEREIN STATED--- AND THUS INCONSISTENT WITH THE DECISIONS AND PRINCIPLES APPLIED GENERALLY BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT OVER A LONG PERIOD OF YEARS--- THEY WILL NOT BE FOLLOWED BY THIS OFFICE IN THE PERFORMANCE OF THE DUTIES IMPOSED UPON IT BY LAW.